King v. Moon

• Decision Date: 31 October 1868
• Citation: 42 Mo. 551
• Parties: WYLLYS KING, Plaintiff in Error, v. WILLIAM H. MOON et al., Defendants in Error.
• Court: Missouri Supreme Court

42 Mo. 551

WYLLYS KING, Plaintiff in Error,

v.WILLIAM H. MOON et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1868.

Error to Second District Court.

Abner Green, for plaintiff in error.

I. This being a suit in equity, the District Court should have reviewed the evidence in the cause. The errors of the Circuit Court were sufficient to justify it in reversing the judgment. The issues involved in the cause having been submitted to a jury by the Circuit Court, and the jury failing to agree and having been discharged, the trial was then at an end, and the cause should have been continued. The court, therefore, had no authority to render judgment in the cause without another trial, unless the parties had in express terms waived their right to a trial and agreed to submit it to the court.

II. The chief error committed by the court was the erroneous finding of the facts; and this being an equitable proceeding, the court will reverse if the evidence did not warrant the finding. (Pipkin v. Allen, 24 Mo. 520.)

John L. Thomas, for defendants in error.

I. The court committed no error in deciding the case after issues were submitted to the jury and the jury failed to agree upon a verdict. Under the English chancery practice the chancellor had the undoubted right to even disregard the verdict of a jury; but our practice act has changed the common law rule to some extent. The court in our State has no right to enter judgment nor absolute verdicts. (Cochran v. Moss, 10 Mo. 416; Woodson v. McClelland, 4 Mo. 495.) But none of the cases go so far as to decide that a judge has no right to enter judgment according to the facts, if the jury has failed to agree. This was a case properly triable by the court, and neither party was, as a matter of right, entitled to have issues framed and submitted to a jury. (Morris v. Morris, 28 Mo. 114.) And the court was certainly under no greater obligation to submit issues to a second jury, after the first failed to agree, than to submit issues to the first jury. After the jury failed to agree and were discharged, then the case stood as if no issues had ever been submitted. The court then assumed to decide the case, and the plaintiff assented to it. Therefore, if the plaintiff had a right to have issues submitted again, yet, having assented to the court's deciding the case, he thereby waived such right. The fact that William Moon remained in possession of the land after sale raises no presumption of fraud. (35 Mo. 208.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit, in the nature of a bill in equity, brought by the plaintiff, King, to set aside a deed made by William H. Moon, one of the defendants, to his brother Thomas Moon, on the 27th day of December, 1860, conveying about two hundred and fifteen acres of land lying in Jefferson county. The claim to relief is based on the assumption that the conveyance was fraudulent, and made by W. H. Moon to his brother with intent to hinder, delay, and defraud his creditors. On the trial in the Circuit Court a jury was impaneled and issues framed submitting to their consideration the question of fraud. The jury, being unable to agree, were discharged, whereupon the court, of its own motion, without any new submission, proceeded to determine the cause, and found for the defendant.

The plaintiff then appealed to the Second District Court, where the judgment of the Circuit Court was affirmed, principally on the ground that the appellate court could not revise the facts, and that they had no authority to pass upon the weight of testimony. In this position the District Court unquestionably erred; they made a wrongful application of a correct principle.

In common law proceedings, as to questions of fact which are properly triable before a jury or before the court where the parties assent thereto, the verdict or finding will not be disturbed where there has been no misdirection; but in chancery or equitable cases the whole matter is open to review and revision both as to the law and the fact.

When the Circuit Court proceeded to determine the cause, after discharging the jury, the plaintiff gave his assent, but the defendants objected; but as the finding was for the defendants, and they do not complain, we do not think the plaintiff can now interpose an objection to the action of the court.

The facts appear to be that when the conveyance was executed Wm. H. Moon was a merchant doing business in the town of De Soto, Jefferson county, and that he was in embarrassed circumstances--in fact, insolvent. About the middle of February, 1861, he made an assignment of his store, goods, and other personal property, together with about twenty acres of land, being all the property of which he was possessed, to one James P. Cape, for the benefit of his creditors. The assignee, Cape, sold the property, and realized from it about the sum of $1,500. Debts were presented against the estate, and allowed by the assignee, to an amount about equal to the said sum of fifteen hundred dollars, and were duly paid. One of the debts so presented, allowed, and paid, was a note due by Wm. H. to Thomas Moon for one hundred and ninety-nine dollars, which William H. Moon presented in person for allowance to the assignee. It also appears that, some time anterior to the assignment, Wm. H. Moon had executed a deed of trust on part of the property assigned, for one thousand dollars, to Bell, Tilden & Co., who were his creditors.

Judgments were obtained against Wm. H. Moon, as follows: One in favor of Doan, King & Co., January 19, 1863, for the sum of $445.79; one in favor of Shapleigh, Day & Co., in June, 1864, for the sum of $252.53; and also one in favor of Wm. F. Enders & Co., in June, 1864, for $356.30. These judgments were all rendered on debts due previous to the 27th day of December, 1860, the date of the execution of the deed from William to his brother Thomas, and none of them were proved up or allowed against the assigned property.

Execution was regularly issued on the judgment in favor of Doan, King & Co., and the land in controversy levied upon and sold; and King, the plaintiff in this suit, became the purchaser, and received the sheriff's deed therefor. There is only one question, and that is, whether the conveyance made by Wm. H. to his brother was fraudulent, so as to be void as to the existing and previous creditors of the former. While the law will not imply or presume fraud, yet common experience teaches that it is seldom that any direct or positive proof can be obtained in regard to any given transaction, no matter how fraudulent it may be.

Fraud, in common with the highest crimes known to the law, is commonly made out by circumstantial or presumptive evidence. The very charge implies color and disguise, to be dissipated by indicia alone. (Per Cowen, J., Waterbury v. Sturtevant, 18 Wend. 353.) Fraud may be presumed in equity, but must be proved at law; therefore, courts of equity, it is said, will act upon circumstances as indicating fraud which courts of law would not deem satisfactory proofs; or, in other words, will grant relief upon the ground of fraud established by presumptive evidence, which evidence courts of law would not always deem sufficient to justify a verdict. (Jackson v. King, 4 Cow. 207; 1 Story Eq. Jur. §§ 190-3, and cases cited; 3 Greenl. Ev. § 254.) The range of inquiry in the investigation must necessarily be very extensive and bring within its scope all the circumstances bearing upon the question.

A succinct review of the testimony will be necessary to arrive at a correct conclusion. Mr. Cape, the assignee, was sworn on behalf of the plaintiff, and testified to the facts as above set forth in regard to the assignment, and said that, at the time the assignment was made, Willam H. Moon was largely indebted, owing something like $3,000, and that about one-half that amount was allowed and paid by him; that after the date of the conveyance of the land--to-wit: on the 27th day of December, 1860--William H. continued to reside on the same for two or three years and cultivate and use it as his own; that he raised three crops on it after the pretended sale, and then left, for fear of the soldiers, leaving his family and son Joseph on the farm. Witness lived near the place, and never knew Thomas Moon to exercise any control over the land; he had never been in possession of it; the first he heard of Wm. H. making a deed to his brother Thomas was when he was taking an invoice of the assigned goods.

George Hughes states that some time in the night of the 27th of December, 1860, after he had gone to bed and had been asleep, he was awakened by Wm. H. Moon and Thomas Moon, who came to his house and asked him to write a deed for them. He got up and wrote the deed for them, which embraced the same land in controversy, and handed it to William H. Thomas then pulled out of his pocket a small pocket-book and handed it to William, and said: “This, and the notes, will make it all right for the land.” “Yes,” said William H. But the witness saw no money counted -- saw no money pass between them. Thomas did not hand William any note. Witness kept the deed, and next day went to the house of William H. and took the acknowledgment of his wife. William then took the deed and kept it. Witness lived about one mile from Thomas Moon's house, and about six miles from William H. Moon's house. Thomas owned a small piece of land of about ninety acres; was a small farmer; never...